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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17529
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I was discharged from the Army rather hurriedly with what I

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I was discharged from the Army rather hurriedly with what I thought was a bcd after a general court martial in 2003. I mean my outprocess was a confusing blur. The problem is that I never was given a dd214. My inquiry wasn't so much for proof as it was closure. So, I hired one of the retrieval services at the records library, and the Army gives them a letter saying that that after reviewing my records, it was not located, and possibly never issued. (Background: I got in trouble about 3 to 5 months before my Ets) I was actually sent home/discharged a while after my 4 years was contractually up due to pretrial conf., so the Army's response has now piqued my interest. Is this normal? Should I leave it alone? I have never had a problem getting a job since, and don't want to ruin that now (oh yeah, thanks, XXXXX XXXXX to add that to your criminal record). On the other hand, should I be trying to retrieve my army college fund and g.i. Bill benefits? It's been about ten years and I'm about halfway to my bachelor's degree; I only mention my degree because I wanted to know what a more rigorous background check would turn up in a higher tier of job market. I can't find much much in online posts from vets that fit my situation, any helpful opinions/advice?
Submitted: 1 year ago.
Category: Military Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. Can you tell me what you were court-martialed for (what was the misconduct) and whether you know for sure you went to a GCM? Did you spend time in the prison? Did you try to get your service records directly yourself?
Customer: replied 1 year ago.

I knew that I was going to come up hot on a urinalysis and in fear, went awol for about 30 days. In even more fear, I turned myself in. Upon my return, I was seemingly invisible to my unit. I sat idly in the barracks for days, I figured (remember I was young and very dumb) that I'd let them contact me when they're ready to put me out (I expected to be put out). I spent another 30 or more days awol. Upon my second return, I was immediately put into pretrial confinement. I was there for 90 days or so waiting on what my lawyer told me was a gcm. We went to trial, and I was released after 2 more days. I believe it was time served plus two days. As soon as I was released, I outprocessed for about a month and put it all behind me. Almost a year later, I was arrested and immediately released for being awol. 10 years later, I am haunted by what my record probab ly says, as my life has changed drastically for the better. The other day, I paid a company to retrieve my dd214, and this is what I recieved with a full refund. "We have reviewed the individual's service record which is stored in electronic records maintained by the military service department. The specific document requested was not located. It may be that it was not issued based on the specific period or type of military service." Of course, it goes on to say that I can write a letter if I still think that the records are missing. I half expect the responses that I get here to say the same thing, but, what are we without hope? I only worry what prospective employers will see when I graduate college.

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for the additional information. It is important for you going forward that you know exactly what forum you were tried in and also exactly what the outcome will be because you will be asked by prospective employers if you have been convicted of a felony or misdemeanor and details, and you will have to have the answer. In addition, you will just want to know for yourself, as you do now.

So, what I would recommend is that you personally request a copy of your military service record from the National Archives. You can do that by going to: http://www.archives.gov/veterans/military-service-records/
You should get a clearer picture of what forum you were actually tried in (I suspect that it wasn't a GCM--hopefully I am right) and what kind of discharge you received. That has to be your starting point. If by some odd chance the Archives come back without anything, then there has been a major mix up someplace. Then you have to decide if you are going to contact the Department of the Army or let it lie. The problem with not doing anything, is that something can pop up when you least expect it. The truth is that an National Agency Check (FBI background check) should turn up the court-martial and the report of the AWOL periods.

You would not be eligible for GI Bill benefits unless you can produce a Honorable Discharge DD-214, which will not be the case for you.

Please let me know if you have specific follow up questions. I would be more than happy to answer them for you.
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17529
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
Marsha411JD and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

What kind of court martial does it look like then? The judge questioned me, my lawyer questioned me and my first sgt., my father gave character testimony, then i gave a little speech.

Customer: replied 1 year ago.
Relist: Other.
I dont know how long "as soon as your expert replies" is. Vague. An hour or a week?
Expert:  Marsha411JD replied 1 year ago.
Hello again and I apologize for not replying sooner, but I had to go to court. To answer your question, I would guess that you were tried at a Special Court-Martial. Most of the time if a servicemember is being tried for one or two periods of Unauthorized Absence for the length of time you mentioned and turned themselves in, it would not warrant a GCM. If it is a SPCM, that is the misdemeanor court and you could have received a BCD from that court.

I am back in my office now if you have more follow up questions.
Customer: replied 1 year ago.

So basically, my only benefit would be the verification of my bcd, right? I mean the company that i hired to get it for me was physically at the national archives, so i'm inclined to think that my answer would be the same. If they have made some "major mixup" can that be used in my favor? If not, my question is becoming why haven't my employment background checks come up with anything thus far, and does their rigor generally change with higher paying jobs. Im not planning to work for the gov't.

Expert:  Marsha411JD replied 1 year ago.
Well, I can't comment on what this company did or didn't do, I can only tell you how you can get your own records, which isn't necessarily just your DD--214, which is to go to the link I provided or to contact the DAR. As I mentioned, you really do want to know your status so that you can be prepared to respond, should an employer's background check turn this up or you are asked to produce your DD-214, which both the Government (which I understand you say you won't work for) and a Government contractor, may ask for.

In the end it is up to you, but in your initial question you appeared to want to know for sure what your disposition was. I can't say what it was, and only a records check via the avenues I mentioned will resolve that.

The only way that someone dropping the ball works in your favor, is that the background checks don't turn up your charges or conviction at court-martial. But, please keep in mind that if no one has done a National Agency Check (FBI), then that is probably why this has not shown up. There are some jobs, professions, and employers, who will do a NAC and if they do and you have said NO to a conviction, you will be terminated. So, just keep that in mind going forward.
Customer: replied 1 year ago.

Ok..i think that my next question is my only hope besides wishing for a job that doesnt do an nac..i hear that discharge upgrades are rare, what are the odds of my receiving an upgrade 10 years after a bcd?

Expert:  Marsha411JD replied 1 year ago.
First you would have to determine if this discharge was awarded at a GCM or SPCM. If a GCM, then you cannot even apply. The Army Discharge Review Board does not have the authority to change/upgrade any discharge given at a GCM. But assuming that you went to a SPCM, then they do technically have the legal ability to upgrade your discharge. However, it is highly unlikely that this would occur unless there was a blatant error at court-martial that you could prove to the Board, that resulted in your BCD. Even if they did an upgrade, they rarely upgrade more than one level, so in this case, that would be to an OTH. Which is admittedly better than a BCD, but not great.

Again, likelihood is slim and if you want your best chance, you would want to hire an attorney who has a post-military service practice in Military Law and who has experienced with DRB's and Boards or Correction, to assist you. They can put together the absolute best package possible to go to the court. You can read a bit more about the DRB and what they can and cannot do by going to: http://www.usmilitarylawyer.com/Military-Record-Corrections.asp
You can find the form you would need, should you apply on your own at: http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0293.pdf

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Marsha411JD
Marsha411JD
Military Lawyer
17529 Satisfied Customers
Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG